Citation Nr: 1824327
Decision Date: 04/23/18 Archive Date: 05/03/18
DOCKET NO. 14-24 863A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida
THE ISSUES
1. Entitlement to an initial evaluation higher than 20 percent for diabetes mellitus.
2. Entitlement to an initial evaluation higher than 10 percent for degenerative arthritis of the right shoulder, cervical spine, thoracolumbar spine, right knee, and right foot, to include assigning separate disability ratings.
3. Entitlement to an initial evaluation higher than 10 percent for status-post cholecystectomy secondary to cholecystitis and pancreatitis.
4. Entitlement to an initial compensable evaluation for hypertension.
5. Entitlement to service connection for fecal leakage.
6. Entitlement to service connection for cardiac problems.
7. Entitlement to service connection for pseudofolliculitis barbae.
8. Entitlement to service connection for nerve problems, claimed as tingling and numbness (foot, leg, calf).
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
Jonathan Z. Morris, Associate Counsel
INTRODUCTION
The Veteran had active military service from March 1991 to March 2011.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston Salem, North Carolina. Jurisdiction currently resides at the RO in St. Petersburg, Florida.
In July 2017, the Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing. A transcript of the proceeding is of record.
As will be explained below, the Board finds that each of these claims requires further development before a determination can be made, so the Board is remanding these issues to the Agency of Original Jurisdiction (AOJ).
REMAND
Increased Initial Rating Claims
The Veteran seeks increased initial ratings for service-connected disabilities-specifically, diabetes mellitus; degenerative arthritis of the right shoulder, cervical spine, thoracolumbar spine, right knee, and right foot; status-post cholecystectomy secondary to cholecystitis and pancreatitis; and hypertension-that were last evaluated during a December 2010 VA pre-discharge general medical examination. While the Board is not required to direct a new examination simply due to the passage of time, a new examination is appropriate when the claimant asserts that the disability in question has undergone an increase in severity since the time of the last examination. See Palczewski v. Nicholson, 21 Vet. App 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also Bolton v. Brown, 8 Vet. App. 185, 191 (1995) (VA must provide a new examination where a veteran claims the disability is worse than when originally rated and the available evidence is too old to adequately evaluate the current severity); Caffrey v. Brown, 6 Vet. App. 377, 381 (1995). Given the Veteran's assertion that his service-connected disabilities have worsened, and in light of the amount of time since the last compensation examination and the possible increase in severity, the Board finds a remand is necessary in order to afford him additional examinations which adequately address the current severity of these conditions.
Fecal Leakage and Nerve Problems
Regulations governing the evaluation of back disability claims provide that any associated objective neurologic abnormalities including, but not limited to, bowel or bladder impairment, are to be rated separately from orthopedic manifestations under an appropriate diagnostic code. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). Consequently, the Veteran's claims of entitlement to service connection for fecal leakage and nerve problems are "inextricably intertwined" with his increased-rating claims for his service-connected cervical and lumbar spine conditions. Therefore, consideration of these issues must be deferred pending resolution of the claims for increase regarding the initial rating for the cervical and lumbar spine disabilities. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are "inextricably intertwined" when the adjudication of one claim could have a significant impact on the adjudication of another claim); Harris v. Derwinski, 1 Vet. App. 180 (1991).
Cardiac Problems and Pseudofolliculitis Barbae.
The Board finds that further development of the medical evidence is required prior to adjudicating the Veteran's claim of entitlement to service connection for cardiac problems and pseudofolliculitis barbae. Where VA provides the Veteran with an examination in a service connection claim, such examination must be adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Here, the Veteran underwent evaluation for these claimed conditions during a December 2010 VA pre-discharge general medical examination, in which the examination report does not reflect a diagnosis of any disability. The Veteran's service personnel records indicate that he was given a "permanent no shave chit" in March 2001 after shaving problems for approximately 10 years prior and the medical evidence of record shows that these conditions have been diagnosed. Therefore, the Board finds remand to afford the Veteran new VA examinations is necessary. McLendon v. Nicholson, 20 Vet App. 79, 81 (2006).
Finally, as the Board is remanding these claims for further development, the AOJ should also obtain the records of all relevant treatment [VA and private] the Veteran has received (the records of which have not already been obtained, so they, too, may be considered). See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992).
Accordingly, the case is REMANDED for the following action:
1. Contact the appropriate VA Medical Center(s) and obtain all outstanding treatment records if relevant to these claims. Also ask the Veteran to provide, or authorize VA to obtain, all relevant private medical records that have not been obtained. All efforts to obtain these records must be documented in the claim file and the Veteran properly notified if unable to obtain identified records. 38 C.F.R. § 3.159(c) and (e).
2. After receiving all additional treatment records, schedule the Veteran for a VA compensation examination to reassess the current severity of his diabetes mellitus. His claim file, including a copy of this remand, must be made available to the examiner in conjunction with the examination. All pertinent symptoms and findings must be reported in detail. The examiner should indicate all symptomatology associated with the Veteran's diabetes, and fully describe the impact of the disability on his daily and occupational functioning. All findings must be reported in detail and all opinions must be accompanied by a clear rationale.
3. After receiving all additional treatment records, schedule the Veteran for a VA compensation examination reassessing the severity of his cervical and lumbar spine disabilities and all associated neurological and other impairments. His claim file, including a complete copy of this remand, must be made available to the examiner in conjunction with the examination. All pertinent symptoms and findings must be reported in detail.
Following review of the evidence of record, the clinical examination results, and the Veteran's statements, the examiner must address the following:
(a) Conduct all indicated diagnostic tests that are deemed necessary for an accurate assessment of this condition, including an analysis of any additional disability owing to pain, weakness, premature or excess fatigability, or incoordination, such as during prolonged, repeated use or during "flare ups". The examiner should report (in degrees) the point at which pain is experienced. These determinations, if feasible, should be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups or prolonged use.
This information must be derived from testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing. The examination report must confirm that all such testing has been done and reflect the results of the testing. If the examiner is unable to perform the required testing or concludes the testing is unnecessary, he or she must clearly explain why that is so.
(b) Indicate whether the Veteran has had any incapacitating episodes during the past 12 months, and, if so, the number of episodes and the duration of them.
*An incapacitating episode is defined by VA regulation as a period of acute signs and symptoms due to intervertebral disc syndrome (IVDS) requiring bed rest prescribed by a physician and treatment by a physician.
(c) Determine whether the Veteran has any neurologic impairment because of his cervical and/or lumbar spine disabilities, including, but not limited to, bowel or bladder impairment or any upper and/or lower extremity radiculopathy. If the Veteran does have this additional impairment, then indicate which nerves have been affected by paralysis, incomplete paralysis, neuralgia, or neuritis, and must further describe the severity of the neurologic impairment in terms of whether it is mild, moderate, moderately severe, severe, or complete.
(d) As well, comment on what limitations in physical and/or sedentary work environments might be expected (based on the Veteran's employment history and training) owing to his service-connected cervical and/or lumbar spine disabilities and all consequent impairment.
The examiner must provide explanatory rationale for all opinions given, preferably citing to clinical findings or other medical authority. If any requested opinion cannot be provided without resorting to mere speculation, the examiner must explain why a more definitive response is not possible or feasible. In other words merely saying he or she cannot respond will not suffice.
4. After all available records have been associated with the claims file, schedule the Veteran for an appropriate VA compensation examination to reassess the current severity of his service-connected right shoulder disability. His claims file, including a copy of this remand, must be made available to the examiner for review of the history of this disability. Following review of the evidence of record, the clinical examination results, and the Veteran's statements, the examiner must:
(a) Conduct any indicated diagnostic tests that are deemed necessary for an accurate assessment, including an analysis of any additional disability due to pain, weakness, premature or excess fatigability, or incoordination, such as during prolonged, repeated use or during "flare ups". The examiner should report (in degrees) the point at which pain is objectively recorded. These determinations, if feasible, should be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups or prolonged use.
This information must be derived from testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. The examination report must confirm that all such testing has been done and reflect the results of the testing. If the examiner is unable to perform the required testing or concludes the testing is unnecessary, he or she must clearly explain why that is so.
(b) As well, comment on what limitations might be expected in the workplace (based on the Veteran's employment history and training) with respect to his service-connected right shoulder disability.
The examiner must provide complete rationale for all opinions given, preferably citing to clinical findings or other medical authority. If any requested opinion cannot be provided without resorting to mere speculation, the examiner must explain why a more definitive response is not possible or feasible. In other words merely saying he or she cannot respond will not suffice.
5. After all available records have been associated with the claims file, schedule the Veteran for an appropriate VA compensation examination to reassess the current severity of his service-connected right knee disability. His claims file, including a copy of this remand, must be made available to the examiner for review of the history of this disability. Following review of the evidence of record, the clinical examination results, and the Veteran's statements, the examiner must:
(a) Conduct any indicated diagnostic tests that are deemed necessary for an accurate assessment, including an analysis of any additional disability due to pain, weakness, premature or excess fatigability, or incoordination, such as during prolonged, repeated use or during "flare ups". The examiner should report (in degrees) the point at which pain is objectively recorded. These determinations, if feasible, should be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups or prolonged use.
This information must be derived from testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. The examination report must confirm that all such testing has been done and reflect the results of the testing. If the examiner is unable to perform the required testing or concludes the testing is unnecessary, he or she must clearly explain why that is so.
(b) As well, comment on what limitations might be expected in the workplace (based on the Veteran's employment history and training) with respect to his service-connected right knee disability.
The examiner must provide complete rationale for all opinions given, preferably citing to clinical findings or other medical authority. If any requested opinion cannot be provided without resorting to mere speculation, the examiner must explain why a more definitive response is not possible or feasible. In other words merely saying he or she cannot respond will not suffice.
6. After receiving all additional treatment records, schedule the Veteran for a VA compensation examination to reassess the current severity of his service-connected right foot disability. His claim file, including a copy of this remand, must be made available to the examiner in conjunction with the examination. All pertinent symptoms and findings must be reported in detail. The examiner should indicate all symptomatology associated with the Veteran's right foot, and fully describe the impact of the disability on his daily and occupational functioning. All findings must be reported in detail and all opinions must be accompanied by a clear rationale.
7. After receiving all additional treatment records, schedule the Veteran for a VA compensation examination to reassess the current severity of his service-connected status-post cholecystectomy secondary to cholecystitis and pancreatitis. His claim file, including a copy of this remand, must be made available to the examiner in conjunction with the examination. All pertinent symptoms and findings must be reported in detail. The examiner should indicate all symptomatology associated with the Veteran's status-post cholecystectomy secondary to cholecystitis and pancreatitis, and fully describe the impact of the disability on his daily and occupational functioning. All findings must be reported in detail and all opinions must be accompanied by a clear rationale.
8. After receiving all additional treatment records, schedule the Veteran for a VA compensation examination to reassess the current severity of his hypertension. His claim file, including a copy of this remand, must be made available to the examiner in conjunction with the examination. All pertinent symptoms and findings must be reported in detail. The examiner should indicate all symptomatology associated with the Veteran's hypertension. All findings must be reported in detail and all opinions must be accompanied by a clear rationale.
9. After receiving all additional treatment records, schedule the Veteran for an appropriate VA medical examination to address the nature and etiology of his pseudofolliculitis barbae. His claim file, including a copy of this remand, must be made available to the examiner in conjunction with the examination. All pertinent symptoms and findings must be reported in detail. Following review of the evidence of record, the clinical examination results, and the Veteran's statements, the examiner must address whether it is at least as likely as not (50 percent or greater probability) that the Veteran's pseudofolliculitis barbae is etiologically related to his active military service.
When responding, the examiner should take into account the lay statements of record regarding the nature and onset of symptoms. The examiner is advised that the Veteran is competent to report symptoms and treatment and that his reports must be considered in formulating the requested opinion. If the Veteran's reports are discounted, the examiner should provide a reason for doing so.
Also, the mere absence of evidence of contemporaneous treatment in the service treatment records cannot, standing alone, serve as the sole basis for an unfavorable opinion. However, it is permissible to consider this as one factor in the determination regarding the origins of this claimed condition, provided there is also sufficient explanation as to why it is reasonable to have expectation of treatment in the circumstances presented.
All answers to the questions listed above must be supported by a clear rationale. The examiner is asked to explain in detail the underlying reasoning for his or her opinion, to include citing to relevant evidence, supporting factual data, prior medical opinions, and medical literature, as appropriate. If any requested opinion cannot be provided without resorting to mere speculation, the examiner must explain why a more definitive response is not possible or feasible. In other words, merely saying he or she cannot respond will not suffice.
10. After receiving all additional treatment records, schedule the Veteran for an appropriate VA examination to determine the nature and etiology of his claimed cardiac problems, other than hypertension. His claim file, including a copy of this remand, must be made available to the examiner in conjunction with the examination. All pertinent symptoms and findings must be reported in detail. Following review of the evidence of record, the clinical examination results, and the Veteran's statements, the examiner must address the following:
(a) Identify and clearly describe all diagnoses related to the Veteran's claimed heart condition, other than his service-connected hypertension. If none have been identified, the examiner should explain this finding.
(b) For each condition identified above, the examiner should provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that any of these identified disabilities are etiologically related to the Veteran's active military service or caused or aggravated by his service connected hypertension.
When responding, the examiner should take into account the lay statements of record regarding the nature and onset of symptoms. The examiner is advised that the Veteran is competent to report symptoms and treatment and that his reports must be considered in formulating the requested opinion. If the Veteran's reports are discounted, the examiner should provide a reason for doing so.
Also, the mere absence of evidence of contemporaneous treatment in the service treatment records cannot, standing alone, serve as the sole basis for an unfavorable opinion. However, it is permissible to consider this as one factor in the determination regarding the origins of this claimed condition, provided there is also sufficient explanation as to why it is reasonable to have expectation of treatment in the circumstances presented.
All answers to the questions listed above must be supported by a clear rationale. The examiner is asked to explain in detail the underlying reasoning for his or her opinion, to include citing to relevant evidence, supporting factual data, prior medical opinions, and medical literature, as appropriate. If any requested opinion cannot be provided without resorting to mere speculation, the examiner must explain why a more definitive response is not possible or feasible. In other words, merely saying he or she cannot respond will not suffice.
11. Ensure that the requested examination reports are responsive to the applicable rating criteria in the case of the increased rating claims and the determinative issue of causation in the case of the service connection claims. If the reports are not responsive to these claims, obtain all necessary additional information. Stegall v. West, 11 Vet. App. 268, 271 (1998); 38 C.F.R. § 4.2.
12. After completing the above and any other development deemed necessary by the AOJ, readjudicate the claims remaining on appeal. If any claim continues to be denied, or is not granted to the Veteran's satisfaction, send him and his representative a Supplemental Statement of the Case (SSOC), and give them time to respond to it before returning the file to the Board for further appellate consideration of this claim.
The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (West 2014).
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M. H. Hawley
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).